Appeals, Nos. 255 and 256, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, July T., 1956, No. 41, in case of Wesley Staszak, a minor, et al. v. Forde R. Seibel. Judgment affirmed.
Gene K. Lynch, with him Leonard J. Paletta, and McArdle, Harrington & McLaughlin, for appellants.
Frederick N. Egler, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK
The jury returned a verdict for defendant and plaintiff moved for a new trial, which the court below refused. Judgment was entered on the verdict and the plaintiff appealed.
Five boys were walking north, down hill, on Whitaker Way, in Allegheny County, going for recreation to a boy's club. The accident happened near an S-curve in the road, and the jury was faced with two versions: one, that the boy was hit while walking on the curbstone by the fender of the car sweeping across it, and the other, that the boy moved off the curbstone into the side of the car.
Plaintiff, then twelve and half years old, was admittedly walking on the curb against traffic, with his left arm on the shoulder of a companion who was walking to his left on a path where ashes were dumped in lieu of a solid sidewalk. The other boys were strung out ahead and did not see the accident. Plaintiff said explicitly that he remained on the curb, which was 7 1/2 inches wide and 8 inches high and did not step from it into the street. The two-lane road was 38 feet 6 inches wide. The boy on whom plaintiff was leaning testified that the wheels of the car did not mount the curb but that the fender swept over it, picked plaintiff up, and after carrying him two car lengths let him fall in the street. One of the boys said that he saw the car a little close to him and by instinct stepped from the curb into the ash path. The accident happened on April 9, at about seven o'clock in the evening when it was dark, and oncoming cars, including the defendant's, had their headlights on.
This version was rejected by the jury, which chose to believe the defendant.
Defendant testified that he saw the group of boys when he was fifty to sixty feet from them. He was
going steeply uphill at 25 to 30 miles per hour. He said: "As I went by the boy [plaintiff] there was an awful thud. I heard the thud and I stopped the car." He then got out, seeing nothing in front of his car, and found the plaintiff to the rear. When he asked the boy what had happened he said: "I pulled away from my friend." His headlights were alight and he was driving two to three feet from the curb as he passed the boys, and he said that he was alert to the possibility of coming too close to the curb. He specifically denied that his bumper ...